Liabilities
Recommendation of the Select Committee
5. We recommend that the Department
confirm when they intend to lay regulations on landowner liabilities.
In general terms, we do not believe that land managers should
face any new liabilities as a result of the Act (paragraph 25).
Government and Agency response
During the passage of the Act, we considered very
carefully the representations on the liability of owners of access
land towards someone who is legally on their land as a result
of the CROW Act. As with all other aspects of the Act, we have
struck a careful balance between the increased right of users
of CROW access land and a reduction in the liability on occupiers.
Section 13 of the Act amends the Occupiers Liability Act 1957
so as to cap the liability of occupiers of land towards those
exercising the new right of access at the level normally owed
to trespassers.
It further provides (by amending the Occupiers Liability
Act 1984) that, at any time when the right is exercisable, occupiers
of access land will owe no liability to those exercising the right
of access, nor to trespassers, in respect of risks arising from:
natural features of the landscape: trees, shrubs or plants of
any description; any river, stream, ditch or pond; and the passage
of any person across a wall, fence or gate (except by proper use
of a gate or stile). Liability is not excluded in any of these
circumstances if the risk arises from anything done intentionally
or recklessly by the occupier - nor in relation to the occupier's
lawful visitors, such as tradesmen.
Furthermore, the Act provides that the
courts, in determining whether any liability is owed to persons
on access land under this Act, must have regard to certain additional
considerations, including the fact that the existence of the new
right of access should not place an undue burden (whether financial
or otherwise) on the occupier.
The Act does not provide us with powers
to lay regulations on landowners' liabilities. Instead, section
42 of the Act allows us to develop regulations which will state,
for prescribed cases, whether access land should be treated as
a public place for the purposes of various other enactments, including
the Mines and Quarries Act 1954. Under this Act abandoned metalliferous
mines and quarries may be deemed a statutory nuisance by the local
authority if they are not secured and they constitute a danger
to the public by reason of their accessibility from a public place.
We will be issuing a consultation paper on proposals for regulations
under section 42 by the end of June.
Access across common land
Recommendation of the Select Committee
6. We urge the Government to monitor
the effect of the new provisions relating to vehicular access
across common land and ensure that the appropriate balance has
been struck between those who own common land and those who need
a right of access across it to reach their properties (paragraph
26).
Government and Agency response
Regulations made under section
68 of the Act came into force in July 2002. They introduced new
procedures to enable homeowners to secure a statutory easement
giving them a permanent right of vehicular access to their premises.
We considered at great length the effect of the measures on both
the owner of the premises and the owner of the land crossed by
the access way before we put the provisions to Parliament. In
our view the regulations do strike an appropriate balance between
the two parties.
We recognise this is a complex
area of law and, in November 2002, we issued a detailed non-statutory
guidance note to help people involved in the process. This provided
advice on the purpose and operation of the Regulations and covered
some of the most frequently asked questions about them. The guidance
was circulated widely and we continue to provide informal advice
in response to individual enquiries.
The Department is not directly involved
in the application process prescribed in the regulations and we
have no means of actively monitoring the operation of the procedures.
Nevertheless, we continue to take a keen interest in this issue,
and will carefully consider any evidence put to us to suggest
that the regulations are not operating as Parliament intended.
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